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Ganga Devi Vs. Krushna Prasad Sharma - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 66 of 1964
Judge
Reported inAIR1967Ori194
ActsHindu Marriage Act, 1955 - Sections 13, 21 and 24; Code of Civil Procedure (CPC) , 1908 - Sections 115, 141 and 151 - Order 11, Rule 1
AppellantGanga Devi
RespondentKrushna Prasad Sharma
Appellant AdvocateRanjit Mohanty and ;R.K. Kar, Advs.
Respondent AdvocateB. Mohapatra and ;R.K. Mohapatra, Advs.
DispositionRevision allowed
Cases ReferredRofe v. Kevorkian.
Excerpt:
.....etc. moreover all proceedings under the act shall be regulated, as far as may be, by the code of civil procedure, and section 141 would stand excluded as it would not be practicable to apply it to the proceedings under the act in view of section 21. i am satisfied that order 11 has full application to the proceedings under section 24 of the act. on the contrary, a bench decision of the calcutta high court in atr 1941 cal 537 clearly lavs down: in the absence of an express prohibition, it is now well settled in air 1962 sc 527 that nothing the code shall be deemed to limit or otherwise affect the inherent power of the court to make orders necessary for the ends of justice. applies to a proceeding under section 24 of the act, the learned district judge failed to exercise a jurisdiction..........this behalf, all proceedings under this act shall be regulated, as far as may be, by the code of civil procedure, 1908. section 24 of the act makes provisions for maintenance pendente life and expenses of proceedings. it enacts: 'where in any proceeding under this act it appears to the court that either the wife or the husband, as the case may be has no in dependent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding, such sum as having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable.'thus in a proceeding for divorce, the.....
Judgment:
ORDER

G.K. Misra, J.

1. Plaintiff opposite party (husband) filed a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), with a prayer to dissolve the marriage between himself and the defendant petitioner (wife) by a decree of divorce, on grounds of her unsound mind and bad character. After filing the written statement, the defendant filed an application under Section 24 of the Act asking for maintenance pendente lite at the rate of Rs. 1000 per month, arrears of maintenance at Rs. 16,000 and Rs. 5000 towards expenses of the proceedings. She averred that she had no independent income to maintain herself and to meet the expenses of the suit filed against her. She alleged that the plaintiff is a rich business man having considerable immovable properties in lands and houses and that he possesses business of jewellery, spices and cosmetics etc. She estimated the average income of the plaintiff at Rs. 10,000 per month. The plaintiff challenged the aforesaid averments as untrue and asserted that his monthly income did not exceed Rs. 100 and that the defendant could maintain herself with a sum of Rs. 15 per month without assistance as she had her own independent means. Defendant filed certain interrogatories a copy of which was served on the plaintiff who filed an objection thereto. By his order dated 22-1-64 the learned District Judge rejected defendant's application for interrogatories. The Civil Revision is against this order.

2. The order of the learned District Judge is cryptic, and to appreciate the contentions, the entire order may be quoted-

'These interrogatories are meant to be served on the plaintiff in an enquiry on the defendants petition filed under Section 24 of the Hindu Marriage Act for maintenance. Order 11, Rule 1, C. P. C. applies only to suits and not to any interlocutory proceedings. So this application seems to be not maintainable. Also the interrogatories sought to be served appear to be in the nature of fishing out the evidence which the plaintiff may adduce in the matter. The purpose of interrogatories is to discover the nature of the case as distinct from the evidence. So even on merits. I do not think that the petition can be entertained.'

3. Mr. Mohapatra in support of the order of the learned District Judge advanced the following contentions:

(i) The application calling upon the plain tiff to answer the interrogatories is in relation to the application under Section 24 of the Act, which is an interlocutory matter arising out of the suit for divorce under Section 13 of the Act. Section 21 of the Act docs not override Section 141, C. P. C. ami Order 11, C. P. C. has no application to the interlocutory proceeding under Section 24 of the Act.

(ii) The interrogatories purport to evidence wherewith the plaintiff intends to support his case at the trial and are fishing in nature: and

(iii) Section 115, C.P.C. is not applicable in the facts and circumstances of this case.

4. Section 21 of the Act lays down that subject to other provisions contained in this Act and to such rules as the High Court make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.

Section 24 of the Act makes provisions for maintenance pendente life and expenses of proceedings. It enacts:

'Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be has no in dependent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding, such sum as having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable.'

Thus in a proceeding for divorce, the section makes provisions for grant of interim maintenance and expenses of the proceeding. In an application under this section the petitioner is to establish the following ingredients:

(i) The petitioner has no independent income sufficient for her support and for necessary expenses of the proceeding, or, if she has income, the nature and quantum of it:

(ii) The income of the opposite party and the quantum thereof; and

(iii) The nature and extent of her needs--both for maintenance and expenses of the proceeding.

Under Rule 13 of the Rules framed by the High Court under the Act, she must allege the sources of the income of the opposite party, particulars of other movable and immoveable properties owned by them, the number of dependants on them and the names of such dependants.

These various ingredients are to be established by evidence as is done in regular trial. Thus the application under Section 24 starts a proceeding under the Act.

In terms of Section 21 of the Act, the proceeding under Section 24 shall be regulated as far as may be by the Code of Civil Procedure, subject of course to the other provisions contained in the Act or the Rules framed by the High Court. There is no provision either in the Act or in the Rule that Order 11, C. P. C. shall have no application to a proceeding under Section 24 of the Act. The learned District Judge arrived at an erroneous conclusion by ignoring Section 21 of the Act which is wide in its language. There is no room for restraining its operation.

5. Mr. Mohapatra, however, argues that even if Civil Procedure Code applies under Section 21 of the Act, it must be subject to Section 141, C. P. C. which says that the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in and Court of Civil Jurisdiction. He contends that Civil Procedure Code has no application to interlocutory matters in a suit or proceeding, and that the proceeding under Section 24 of the Act being interlocutory. Order 11 has no application. If one has to resort to Section 141, C. P. C. there may be some force in saying that Civil Procedure Code is not applicable to interlocutory proceedings. In view of Section 21 of the Act laying down that the procedure under Civil Procedure Code would be applicable as far as may be Section 141. C. P. C is to be wholly ignored.

Even assuming that Section 141, C. P. C. is also to be taken into consideration, it must be read subject to the special procedure prescribed under Section 21 of the Act The maxim generalia specialibus non derogant (general provisions will not abrogate special provisions) or generalibus specialia derogant (special things derogate from general) applies to matters of procedural law. Section 21 of the Act, which is a special provision, would therefore prevail over Section 141, C. P C. which is a general provision. Moreover all proceedings under the Act shall be regulated, as far as may be, by the Code of Civil Procedure, and Section 141 would stand excluded as it would not be practicable to apply it to the proceedings under the Act in view of Section 21.

I am satisfied that Order 11 has full application to the proceedings under Section 24 of the Act.

6. The aforesaid conclusion does not necessitate an examination of the argument of Mr. Mohapatra that Section 141, C. P. C has no application to interlocutory proceedings in the suit itself. In deference to his strenuous argument, however, I would record my view on the point. In (1895) 22 Ind App 44 (PC) Thakur Pd. v. Sheik Fakirullah their Lordships observed:

It is not suggested that Section 373 of the C. P C. (Order 23, Rule 3, C. P. C. 1908) would of its own force apply to execution proceedings. The suggestion is that it applies by force of Section 647 (Section 141, C. P. C. 1908). But the whole of Chapter XIX of the Code (Order 21, C. P. C. 1908) consisting of 121 sections is devoted to the procedure in execution and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable, by saying in general terms that the procedure for suits should be followed as far as possible. Their Lordships think that the procedure spoken in Section 647 'include original matters in the nature of suits, such as, proceedings in Probates Guardinanships and so forth, and do not include execution proceedings'.

This decision was approved by the Supreme Court in AIR 1962 SC 1886. There is, therefore, no dispute over the proposition that on the strength of Section 141, C. P. C., the procedure provided in the Civil Procedure Code is not applicable to execution proceeding

The decisions, however, do not support the wide contention that the procedure, prescribed in the Civil Procedure Code, has no application to interlocutory proceedings in a pending suit. The underlined words (here in ) in the Privy Council dictum started a flood of controversy Whether an interlocutory proceeding is a kind of original action bearing the characteristic of a suit is not always easy to determine. Excepting an observation in AIR 1963 Mad 338, to the effect

'interlocutory application in a pending suit would fall within the class of original proceeding'.

no authority has been brought to my notice in support of the wide and bald contention that Civil Procedure Code has no application to interlocutory matters in a pending suit. On the contrary, a bench decision of the Calcutta High Court in ATR 1941 Cal 537 clearly lavs down:

'After all, it is a proceeding in the suit itself and the incident of the procedure as laid down in the Code of Civil Procedure would attach to such proceeding and can, in our opinion, be availed of by the Court whenever it considers necessary. '

In this case, the applicability of Order 11, C P. C. to reopening of accounts under a decree under the Bengal Money Lenders Act was in issue. Their Lordships held that assuming that the proceeding was merely a misrellaneous proceeding, the Court was not powerless to administer interrogatories under Order 11, C. P. C. They held that the proceeding related to an original matter in the nature of a suit and not a mere summary proceeding. In my view, the mere fact that a particular matter or proceeding is interlocutory is not by itself without more determinative of the question 'whether it is an original matter in the nature of a suit.'

The proceeding under Section 24 of the Act is an original matter in the nature of a suit. Though the application was filed in a proceeding for divorce under Section 13 of the Act, it has no relevance or direct connection with the question of divorce. Even though ultimately the divorce proceeding may end in favour of the plaintiff, interim maintenance and expenses of the proceeding can be granted if the defendant has no independent means. The ambit and nature of the proceeding for divorce are wholly different from the scope of the application under Section 24. The issues and nature of proof would also be different. It is interlocutory in the sense that it arises out of a divorce proceeding. But it is an original matter in the nature of a suit. Even if Section 141, C. P. C., were applicable, the procedure provided in the Code of Civil Procedure would be applicable to a proceeding under Section 24 of the Act.

7. Even assuming that Section 141, C, P. C., has no application to interlocutory proceedings in a suit, the Court can issue interrogatories under Section 151, C. P. C. In respect of matter arising under Section 24 of the Act, there is no provision in the Code of Civil Procedure expressly prohibiting that the remedy, prescribed in Order 11 would not be available to interlocutory proceedings. In the absence of an express prohibition, it is now well settled in AIR 1962 SC 527 that nothing the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. The Court can, therefore, under Section 151, permit interrogatories being served to shorten the prolonged course of interlocutory proceedings.

8. It would now be pertinent to examine the scope of Order 11, C. P. C. The main object of interrogatories is to save expenses by enabling a party to obtain an admission from his opponent which makes the burden of proof easier. It would certainly not to be extended to prying into the evidence wherewith the opposite party intends to support his case. The interrogatories are permissible with regard to matters which are relevant to the facts directly in issue. In certain circumstances, however they may be extended to other facts not directly in issue, but in connection with which existence, non-existence, nature or extent of right, liability or disability, asserted or denied in the suit or proceeding necessarily follows. Sometimes it is used to show that the defence set up is unfounded. These, in substance, are generally the matters to which interrogatories should be directed. Under Order 11, C. P C, interrogatories can be administered in the same manner as is done in England, for discovering the facts in issue : AIR 1914 Cal 767. In Attorney General v. Gaskil, (1882) 20 Ch D 5t9, Cotton L. J. observed :

The right to discovery remains the same, that is to say, a party has a right to interrogate with a view to obtaining an admission from his opponent of every thing which is material and relevant to the issue raised on the pleadings. It was said in argument that it is not discovery where the plaintiff himself already knows the fact. But that is a mere play on the word 'discovery'. Discovery is not limited to giving the plaintiff a knowledge of that which he does not know, but includes the getting an admission of anything which he is to prove on any issue which is raised between him and the defendant. To show that the pleadings have raised issues and that therefore, interrogatories should not be allowed is another fallacy. The object of the pleadings is to ascertain what issues are. The object of the interrogatories is not to learn what the issues are but to see whether the party intelligently can obtain an admission from his opponent which makes the burden of proof easier than it otherwise would have been.'

Order 11, Rule 6, C. P. C., enacts the nature of objections that can be advanced to the interrogatories. It says that any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit or that the matters enquired into are not sufficiently material at that stage, or on any other ground, may be taken on affidavit in answer. To say that the question must not be fishing only means that the question must relate to definite, existing and relevant circumstances and must not be merely in the hope of discovering some flaw in the opponents case, or with the object of filling a blank in the interrogatories, see (1936) 2 All ER 1334 Rofe v. Kevorkian.

9. Now the question is whether the learned District Judge took the correct view on the merits. It would be noticed from the order, already quoted, that absolutely no reason has been given by him as to why he considered the interrogatories to be fishing in nature. To appreciate the contention, the interrogatories may be quoted.

1. What are the sources of independent income of the defendant alleged by you in para. 4 of the rejoinder

2. Are you a partner of the Firm M/s. Dwarka Prasad Sharma and Brothers at Lion's Gate, Puri

3. What is the extent of your interest in that Firm

4. Who manages that business

5. Are you and your brother Dwarika-prasad Sharma joint or have separated at any time If separated since how long and by what document Give particulars of that document, if any.

6. Are you on the said firm is an income-tax and sales-tax payee

7. What are your basis for the statement that the defendant is not of sound mind

8. What was the extent of the joint family gold business before the Gold Control came into force

9. When did you and your brother inherited the ancestral joint family property and joint family business

It is the positive case of the plaintiff that his income is about Rs. 100 per month. Interrogatories 2 to 6 are directed to get information and admission from the plaintiff with regard to the income of the firm and the quantum of plaintiff's interest therein. The questions are not fishing and are directly relevant to matters in issue. The answers to interrogatories will shorten the trial and may also show that the defence set up is unfounded. These interrogatories come within the purview of the rule enunciated above and must be allowed. Interrogatories 8 and 9 shall also be allowed on the same reasoning. Mr. Mohanty does not press interrogatories 1 and 7.

10. The next question for consideration is as to the scope of interference in Civil Revision under Section 115 C. P. C. There is no dispute that an appeal does not lie against the impugned interlocutory order though an appeal lies against a final order under Section 24 of the Act. The learned District Judge rejected the application for service of interrogatories on the grounds (i) that Order 11, C. P. C., has no application to interlocutory matters, and (ii) that interrogatories are not permissible on merits. In view of my finding that order 11 C. P. C. applies to a proceeding under Section 24 of the Act, the learned District Judge failed to exercise a jurisdiction vested in him by saying that, the application was not maintainable. This Court can interfere with such order under Section 115(1)(b), C. P. C.

Whether interrogatories should be allowed or not is a question within the jurisdiction of the Court. The error of procedure committed by the learned Judge lay in the fact that he did not attempt to formulate the correct legal position and to apply the same to the facts of the case. His ultimate bald decision without reasoning was affected and thus the error of procedure committed is material. The resultant conclusion is that the Court, while deciding a question within jurisdiction, acted in the exercise of it with material irregularity under Section 116(c). (See AIR 1949 PC 156 and AIR 1959 SC 492). Under Section 115, C. P. C., it is open to the High Court to make such order as it thinks fit. The order is quashed and the application for interrogatories is allowed as already indicated.

11. All the contentions raised by Mr.Mohapatra fail. The order of the learned District Judge is set aside and the Civil Revisionis allowed with costs. Hearing fee of Rs. 50.Plaintiff is directed to answer the interrogatories before the District Judge within three weeks from to-day. The District Judge is directed to dispose of the proceeding under Section 24 as quickly as possible. The recordsbe sent back to the lower Court without delay.


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